The State of Aloha

January 31, 2014

It's not every day when Article Six of our Hawaii Constitution makes it into the newspaper. The material is hardly riveting. But this week, the Judicial Selection Commission announced its list of six nominees in anticipation of the retirement of one of the most prolific and well-known justices on our state Supreme Court. It's a strong list.

The candidates include three trial judges, the state's head public defender, the chief judge of the Intermediate Court of Appeals, and a veteran trial lawyer. One of these candidates will join the Supreme Court once Associate Justice Simeon R. Acoba Jr. retires after his 70th birthday in March.

Every aspect of this story - from Justice Acoba's retirement to the list of six - comes from the carefully organized procedure outlined in our state constitution.

First, there's Justice Acoba's retirement. All state judges have to step down and retire when they reach the age of 70. It does not matter if they are still interested in the job or not. It's required.

Critics of this provision have argued that this provision is discriminatory. Age is just a number, they say. There is no real reason to require them to retire just because they reach a certain age. A few years ago, there was an attempt to amend the constitution to eliminate this mandate. Many speculated that it had a lot to do with the fact that both the chief judge of the Intermediate Court of Appeals and of the Hawaii Supreme Court were about to hit that crucial birthday. The attempts to amend the constitution failed and the provision remained in effect.

So once a judge or justice steps down, what happens next? How do we fill the vacancy? Enter the Judicial Selection Commission.

The commission was written into our constitution in 1978. It's composed of nine members selected by various government agencies. The Senate president and the speaker of the House pick two each, the chief justice of the Supreme Court picks one, the Hawaii State Bar Association selects two members, and the governor gets to pick two. Only two commissioners can be lawyers.

The commission announces a call for applicants to fill an anticipated vacancy. The applicants apply in secret and they are reviewed in secret. The commission quietly investigates each applicant through interviews and other means. Once the applications and investigations are done, the commission narrows it down to a list of no more than six nominees.

The commission changed the old way judges were selected: through direct appointment by the governor. The establishment of the JSC was supposed to make the process more open by curbing the patronage power of the chief executive of the state.

But there has been criticism of this commission. The late Judge Samuel King often argued that the JSC hid from the public an inherent political process. The applications, the investigations and the formation of a list are all done in secret.

This is exactly what the commission was supposed to curb. University of Hawaii law professor Randall Roth has also criticized the commission. When he and others investigated and wrote their now-famous expose on the Bishop Estate Trust and its collusion with the Hawaii Supreme Court in the 1990s, professor Roth found circumstantial evidence that linked the selection of Supreme Court justices with its role in appointing trustees to the Bishop Estate. Those days are long gone.

It seems like the appointment of justices and judges has been a relatively smooth process. But not quite.

Sometimes things go awry. When the JSC issues its list, the governor has only 30 days to decide. Second Circuit Judge Peter Cahill learned this the hard way. Gov. Neil Abercrombie selected him two days after the deadline. His appointment had no legal effect.

The constitution states that if the governor fails to appoint within 30 days, the commission itself makes the appointment. In Judge Cahill's case, the JSC took the hint and picked him.

From there, it's on to the state Senate. The Senate can reject the nominee. It's happened. Former Gov. Linda Lingle's first choice as chief justice of the Supreme Court was Katherine G. Leonard, a member of the lower appellate court. The Senate rejected Judge Leonard, much to the chagrin of the governor. It was the second such rejection in recent history: The Senate rejected Gov. John Waihee's selection of Sharon Himeno 19 years ago.

Pursuant to the constitution, Gov. Lingle went back to the list of six and appointed our current chief justice, Mark Recktenwald, whose leadership has been praised by just about everyone.

And so it begins again. The list of six that came out this week is the first step toward appointing a new member to our highest court. No matter what happens on the way to filling a vacancy, be certain that our constitution will guide us.

* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is 808stateofaloha@gmail.com. "The State of Aloha" alternates Fridays with Ilima Loomis' "Neighbors."